Germany says games with Nazi symbols can get “artistic” exception to ban

A decades-old German practice barring the sale of video games that show swastikas and other Nazi Party symbols has been reconsidered by the country’s ratings board, putting the medium on equal footing with other “artistic” productions in the country for the first time.

Germany’s Unterhaltungssoftware Selbstkontrolle ratings board (USK) announced Thursday that it will now make a “case-by-case examination” of games that include banned symbols from “unconstitutional organizations,” including the Nazis. That decision reverses a decades-old precedent in which USK refused to provide ratings for those games, effectively banning them from sale in the country.

“Through the change in the interpretation of the law, games that critically look at current affairs can for the first time be given a USK age rating,” USK Managing Director Elisabeth Secker said in a statement. “This has long been the case for films and with regards to the freedom of the arts, this is now rightly also the case with computer and video games.”

Two decades of double standards

Use of Nazi symbols is generally banned in Germany under Section 86a of the German Criminal Code, a Cold War-era regulation meant to stem the spread of propaganda. But that section of the law has always included a “social adequacy clause” exempting works that “promote art or science, research or teaching, reporting about current historical events or similar purposes.”

While German movies and TV shows have long used this artistic exception to depict historical Nazis, a 1998 ruling from the High District Frankfurt Court determined that the exception did not apply to Wolfenstein 3D. The ruling implied the legal reasoning hinged in part on the differences in the perceived audiences for games and other media at the time:

In particular for children and adolescents, computer games are an attractive and increasingly used form of play. If they would be lawfully confronted with symbols of national socialist organizations in video games, this could lead to them growing up with these symbols and insignias and thereby becoming used to them, which again could make them more vulnerable for ideological manipulation by national socialist ideas.”

The double standard between video games and other media has also led to some interesting juxtapositions. As an international legal analyst at Lexology notes:

Because Nazi symbols in movies are generally tolerated in Germany, this led to almost ridiculous situations where, for instance, the movie Indiana Jones was shown without edits during morning hours while the corresponding and identically titled cartoonish video game only showed black holes instead of Swastikas.

In an April decision on Bundesfighter (as reported by Lexology), Germany’s attorney general ruled that the art exemption does apply to the game. Furthermore, the attorney general said that the 1998 Wolfenstein decision was “outdated,” in part because it predates the introduction of age ratings in 2003. That decision laid the groundwork for a similar ruling by Germany’s Supreme Youth Protection Authority of the Federal States, which in turn led to USK’s newly announced policy.

Germany’s Games Industry Association applauded USK’s decision, with Managing Director Felix Falk saying in a statement that it will allow games to “play an equal role in social discourse, without exception… Many games produced by creative, dedicated developers address sensitive topics such as the Nazi era in Germany, and they do so in a responsible way that encourages reflection and critical thinking.”